Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in its disposition of attorney Charles D. Oppenheimer's request for copies of the KSP's "records of its investigation into Dwayne Eric Daniels' alleged embezzlement from the Greenup County Extension office." For the reasons that follow, we find no violation of the Act.
Mr. Oppenheimer made his request on July 15, 2014. On July 18, records custodian Emily M. Perkins sent a letter stating in part:
Due to the storage location of this file, the records are not immediately available. However, I have requested a copy of the records be forwarded to this office. The information will be released to you, to the extent required under the Kentucky Open Records Act, upon completion of the review. The records should be mailed to you on or before August 15, 2014.
Mr. Oppenheimer appealed to the Attorney General on July 22, 2014, arguing that the KSP was not timely providing the records. Subsequently, this office was advised that the KSP had mailed the requested records to Mr. Oppenheimer on August 4, 2014, with certain information redacted under authority of KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. That information consisted of dates of birth, Social Security numbers, driver's license numbers, personal phone numbers, and financial account numbers.
As to the KSP's timeliness in providing the records, we note that KRS 61.880(1) imposes a response period of three business days. Under KRS 61.872(5), a longer time may be taken "[i]f the public record is in active use, in storage or not otherwise available." In such circumstances, the agency must provide "a detailed explanation of the cause ? for further delay and the place, time, and earliest date on which the public record will be available for inspection." While the explanation might have been more detailed in this case, the KSP did explain that the records were in storage and would take additional time to retrieve due to their storage location. In view of the fact that the additional delay amounted to only 11 business days, we find no procedural violation of the Open Records Act.
With regard to the information redacted from the records, KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
In
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (2013), the Supreme Court of Kentucky found that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." "To implicate an individual's privacy interest, ? the adverse repercussions of public disclosure need not be severe." Id. On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85. In Kentucky New Era, the newspaper was seeking address, telephone, Social Security numbers, and other identifying information on crime victims, witnesses, and uncharged suspects, purportedly in the interest of assuring the public that the police department was "providing equal protection to all parts of the community." Id. at 86. While the Court found this interest legitimate, it did not agree "that that interest can only be vindicated by sacrificing the privacy interests of all those with whom the police come in contact." Id. at 86-87. Therefore, the identifying information was properly withheld.
We find nothing to distinguish this case from the result in the Kentucky New Era case. The dates of birth, Social Security numbers, driver's license numbers, personal telephone numbers, and financial account numbers of private individuals have no manifest bearing on how the KSP performed its public duties, and therefore this identifying information was properly subjected to categorical redaction under KRS 61.878(1)(a). We therefore find that the KSP did not violate the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Distributed to:
Charles D. Oppenheimer, Esq.Ms. Emily M. Perkins